People ex rel. Aspen M. & S. Co. v. District Court, Pitkin County

• Decision Date: 09 March 1888
• Parties: PEOPLE ex rel. ASPEN M. & S. Co. v. DISTRICT COURT, PITKIN CO.
• Court: Colorado Supreme Court

17 P. 298

11 Colo. 147

PEOPLE ex rel. ASPEN M. & S. Co. v. DISTRICT COURT, PITKIN CO.

Supreme Court of Colorado

March 9, 1888

Certiorari to district court, Pitkin county; THOMAS A. RUCKER, Judge.

The relator is the owner of several mining claims situated on Aspen mountain, in Pitkin county; and in order to facilitate the transportation of ores therefrom to certain sampling works in the town of Aspen, known as the 'Hewitt Sampler,' laid out and constructed tram ways from the mines to a common point in the vicinity, and laid out a main line extending from the point of convergence to the sampling works. This main line crosses a parcel of land severally claimed by three persons; by two of them as mining locations and by the third under a pre-emption location as agricultural land. The strip desired for the tram way is 193 feet in length and 33 feet in width. Being unable to obtain the right of way over that thact from the several claimants, the relator filed a petition in the district court of Pitkin county praying that the strip described therein be condemned under the eminent domain act, for the purpose mentioned, and that the petitioner be admitted into possession pending the proceedings, upon depositing in the court a sum of money, to be fixed by the judge, sufficient to pay a reasonable compensation for the land when the same should be ascertained. Upon filing the petition, together with affidavits in support of its averments, a summons issued to the parties claiming the land, and the court entered a rule authorizing the relator to take possession, on depositing with the clerk of the court the sum of $200. This sum was deposited, possession taken, and the construction of the tramway across the track commenced before the return-day named in the summons. A general demurrer to the petition on part of the pre-emption claimant was subsequently filed which was sustained by the court, and thereupon the rule for possession was vacated and set aside as to the said claimant, exceptions being reserved to the rulings. An appeal from the last-mentioned order was prayed and denied.

Geo. J. Boal and C. S. Wilson for petitioners.

A. Heims and T. C. Mo Devit, for respondents.

BECK C.J., ( after stating the facts as above.)

This is a proceeding to review, upon a writ of certiorari, an order of the court below vacating and setting aside a rule, previously entered by it, granting to the relator possession of a strip of land pending proceedings instituted for its condemnation, under the eminent domain statute, for the purpose of a tramway. The statute referred to permits the court or judge, at any stage of the proceedings, to enter a rule authorizing the petitioner to take possession and use the premises sought to be condemned on depositing in court a sum of money, to be fixed by the judge, sufficient to pay compensation for the land taken, when the amount thereof shall be ascertained. The proceeding was instituted by a private corporation, and the use for which the land was sought to be appropriated was a private use. The supposed errors complained of are-- First, that the court, in vacating the rule for possession pending the proceeding for condemnation, exceeded its jurisdiction; second, that, in vacating the rule, it greatly abused its discretion.

There is nothing in the first alleged error. The rule granting possession pending the proceedings was discretionary, and might have been denied by the judge. In many cases instituted under this statute it is the duty of the judge to decline to enter such rule. If, therefore, the rule be granted, and the court subsequently ascertains that its discretion was improvidently exercised, an interlocutory order vacating and setting it aside cannot be impeached for want of jurisdiction. As declared by the court in Templeton v. District Court, 47 Cal. 70, the authority to set aside the order is as clear as the authority to enter it in the first instance.

In respect to the alleged abuse of discretion, it is a safe proposition that, if the right to condemn the strip of land for the purposes specified in the petition did not exist, the court did not abuse its discretion in rescinding the order granting possession. The right claimed is based upon the fifth section of the act of congress of July 26, 1866 entitled 'An act granting the right of way to ditch and canal owners over the public lands, and for other purposes,' (U. S. St. at Large 1866, p. 252), and upon the eleventh section of an act of the legislature of the late territory of Colorado, approved February 13, 1874, entitled 'An act concerning mines,' (Laws 1874, p. 188.) Neither of the sections mentioned has been repealed, but each has been embodied in subsequent revisions. The former now appears as section 2338, Rev. St. U.S., and is as follows: 'As a condition of sale, in the absence of necessary legislation by congress, the local legislature of any state or territory may provide rules for working mines, involving easements, drainage, and other necessary means to their complete development; and those conditions shall be fully expressed in the patent.' The other provision constitutes section 2407, Gen. St. Colo., and is in the following words: 'All mining claims now located, or which may be hereafter located, shall be subject to the right of way of any ditch or flume for mining purposes, or of any tram way or pack-trail, whether now in use, or which may be hereafter laid out across any such location: provided, always, that such right of way shall not be exercised against any location duly made and recorded, and not abandoned prior to the establishment of the ditch, flume, tramway, or pack-trail, without consent of the owner, except by condemnation, as in case of land taken for public highways. Parol consent to the location of any such easement, accompanied by the completion of the same over the claim, shall be sufficient without writings: and provided, further, that such ditch or flume shall be so constructed that the water from such ditch or flume shall not injure vested rights by flooding or otherwise.' It is not contended on part of the relator that the provision of the latter section, relating to tramways, is not in conflict with the state constitution; but it is argued that the foregoing provisions of the act of congress imposed upon the land in question, as a condition of sale, the easement mentioned in the territorial (now state) statute. Says counsel: 'He who acquires mineral land from the general government cannot divest the grant of the conditions with which it passes. State constitutions can neither abridge the authority of an act of congress, nor strip it of the limitations and conditions it imposes. Congress is powerful, and may ignore, as it does, state constitutions, and, in broad terms, authorize local legislatures, regardless of the constitutions of the state, 'to provide rules for working mines;' rules 'involving easements' securing the necessary ingress and egress to one mine over another, or other mineral lands, in working such mine.' The provision of the act of congress relates both to state and territorial legislatures. The power of congress to govern a territory of the United States is conceded to be supreme. It may authorize the...